.
  .




G.O. Abolonin,
DOCTOR OF LAW,
LEGAL ADVISOR OF THE PROFESSIONAL ASSOCIATION OF REGISTRARS, TRANSFER AGENTS,
AND DEPOSITARIES (PARTAD)



ON THE PROBLEMS OF ACCESSIBILITY AND EFFECTIVENESS OF JUSTICE IN CIVIL CASES RELATED TO VIOLATION OF RIGHTS AND LAWFUL INTERESTS OF NUMEROUS GROUPS OF PERSONS


      Currently mutual understanding in respect of certain problems and difficulties in functioning of the Russian judicial system during the period of reforms mainly prevails both among the theoreticians of the civil process and practicing lawyers (judges, attorneys, legal advisors).

      The differences of opinions concern the proposed means of solving the following problems: issues of adversary nature, establishment by the court of objective or formal truth in consideration of civil cases, legal costs, participation of the prosecutor in civil proceedings, observation of civil proceedings principles; use of class actions, executory process procedures, magistrates activities, issues of a binding nature of judgements delivered by higher judicial instances.

      As regards the problems in civil jurisdiction, the positions and opinions, on the contrary, are fairly similar, and the difficulties of present-day judicial system are recognized: insufficient level of financing of the judicial system, overload of the judicial system by civil cases[1], the controversy between the rules of the Code of Civil Procedure of RSFSR and the new federal laws[2], the absence in the Code of Civil Procedure of RSFSR of the rules and mechanisms of implementation of the provisions of civil law which contains institutes not stipulated by the current civil procedure law, the necessity to approve the draft of the new Code of Civil Procedure of RF[3], a general tendency to complication of civil law rules giving rise to problems of staffing of the courts[4], improvement of the judges qualification, as well as the problem of absence of the judges specialization in consideration of particular categories of civil cases.

      True, the above problems do exist, they create certain difficulties in operation of the judicial system and have a significant negative effect on the efficiency of operation of the whole Russian system of justice.

      One of the most important problems awaiting resolution is financing of the judicial systems operation. In order to solve this problem, which is directly related to the problem of accessibility of justice, diverse measures are suggested, e.g. increase of the statutory duty in order to raise the price of justice.

      As a consequence, an abrupt decrease in the number of recourses to court for protection is expected.

      A decrease in the number of recourses to court for protection of their rights and lawful interests, in the opinion of the advocates of this position, will make it possible for the persons having the most significant claims to have their civil cases considered by the court more quickly and efficiently, and that points to a general conclusion that the increase of the justice price is a guarantee of an easier access to justice.

      It is hardly possible to agree with the above viewpoint. In the opinion of the western scholars, the system of justice, financed insufficiently, may turn out to be unable to ensure rendering of judgements complying with high international standards of legality, fairness, and objectiveness. In this connection no less important is the factor of judicial expenses which those involved in proceedings can sustain in order to secure rendering of a judgement in the case. The system which requires from those involved in civil proceedings judicial expenses that are higher than the costs they can afford rules out the possibility to administer justice[5].

      If it can be assumed that the judicial expenses rise, then the courts will probably get free of a significant number of civil cases, but for this purpose the judicial expenses should increase essentially. If this happens, justice may become the destiny of only the most affluent persons or, as some of the authors note, the means of resolving the disputes of the most active part of society, first of all of the business circles [6].

      In this respect the experience of western countries may become a kind of warning against the development of such an approach to solution of the problem of accessibility of justice. It is worthwhile keeping in mind that the recourse of businesses to courts for resolution of disputes means an increase of the price of the matter or of the importance of the judgement which may be rendered by the court and, consequently, entails complication of the procedure for the dispute consideration.

      Representation of interests of businessmen by professional lawyers invariably introduces in the proceedings not only the absence of negligence in the formulation of the matter in dispute and the cause of action[7], but also all possible lawful obstacles to a quick consideration of a civil case motions, objections, and disqualification, as well as the use by the parties of other lawful and not quite lawful means of influencing the court in order to delay the proceedings and obtain the most favorable judgement.

      The endeavor of a representative in a civil case does not go beyond the court establishing a subjective truth, i.e. a formal truth whose establishment by the court would be advantageous for the client of the representative concerned. In view of the tendency of transition of the Russian justice from establishment of the objective truth to the establishment of the formal truth, chances of success of the most able representative, capable to duly adduce the evidence, have risen significantly.

      Participation of qualified lawyers in the proceedings essentially increases the volume of evidence adduced by the parties. The representatives of the most active part of society work off high fees; in this connection such proceedings bathe[8] in procedural documents and can go on for years.

      Inertia and unjustified high cost of such legal proceedings are repugnant even to those businessmen who seek other means of their rights protection, resorting to alternative procedures of the dispute resolution and willingly agreeing to a compromise.

      For instance, in Britain only 2% of the cases reach the stage of proceedings. Some 98% of civil disputes are resolved by the parties amicably.[9]

      Legal proceedings are extremely expensive, the High Court of Britain can entertain a civil case for a year or two, or more, and at the same time court hearings, pleadings, summons of witnesses, adducing of evidence may take place every day within the whole period of proceedings.

      Professor A. Zuckerman justly notes that diversified methods used in various countries to increase the effectiveness of justice differ, with due regard for the fact that they reflect the peculiarities of their legal culture, but most frequently due to the compromise of three factors influencing administration of justice and its structure[10].

      The first of the above factors - the search for the truth or equity of judgement, with due regard for the fact that any judicial system aims at the parties getting whatever they are entitled to by law. In order to achieve this goal the court must first establish true facts and after that correctly apply to these facts a respective law rule.

      The second factor is the duration of proceedings. Adjournment of hearing may cause harm to the expediency of the judgement, irrespective of its correctness. The judgement may be objective and fair, but rendered too late to eliminate the consequences of infraction.

      The third factor is judicial costs. The costs may influence administration of justice considerably. The work of the judicial system also depends on the amount of funds which the State is ready to allocate for justice.

      The availability and effectiveness of justice in Russia essentially decreases a number of factors comprising the cases when the public and municipal authorities, and subjects of economic activities fail to observe the principal rights and freedoms of people; the absence of efficient judicial mechanisms of protection of the infringed rights and lawful interests of numerous groups of persons; inconsistency between individual provisions of new federal laws and the laws of the subjects of the Russian Federation and the Constitution of RF; inadequate separation of jurisdictions of arbitration and common courts; violation of principles of the civil procedure in the course of consideration of civil cases; adoption of foreign legislation, theory, practices, and ideology in violation of the citizens rights and interests to the detriment of the Russian State and law.

      The rules of the Russian Constitution and the Civil Code, which is sometimes rightfully called an economic constitution, fixed the principal rights and freedoms of people and thus marked the transition of this country from the socialist past[11] to liberalism in practically the same form it exists in the majority of western countries except, possibly, for a number of peculiarities governed by the specifics of functioning of the Russian economy.

      In this connection, an anxiety is aroused by suppositions, more and more frequently voiced in the theory of civil procedure, that the adoption of foreign law rules in the course of transition of Russia to foreign forms of business or to capitalism must eventually lead to repetition by the Russian law and judicial system of the development of similar institutions of the western countries[12].
      Really, it should be acknowledged that a certain interaction of legal cultures always takes place, but the conclusions on the absence of opportunities to search for independent ways of the development of Russian law and Russian judicial system are more than doubtful[13].

      The above position was chosen in the course of Russian reforms. Basic reforms in politics, economy, and law of the Russian Federation were marked by colossal, from the viewpoint of their scope, changes of Russian law. Thus, only from May 1990 to May 1998 about 900 legislative acts had been passed in Russia[14].

      A major part of these acts, as applicable to the maximum risk spheres which may comprise the relations connected with the possibility to infringe the rights and lawful interests of numerous groups of individuals (governed by environment protection law, consumers rights protection law, securities market law, advertising law, antimonopoly law) is a derivative law, mainly of Anglo-American origin.

      The general nature of the rules of the statutes presupposing further detailing in judicial precedents, if transferred to a normative soil of Roman-German legal family, inevitably gives rise to a lifeless, formal juridical construction, devoid of the mechanism of use and court application[15].

      There are no rules of judicial precedents in this country, explanations of the Plenary sessions of the Supreme Court (and the High Arbitration Court, as well) are not imperative or mandatory. The rulings of the plenary sessions of the Supreme Court do not formulate new rules, they are a kind of methodological directions for application of current laws and are authoritative, but not obligatory[16].

      On the whole, despite a large number of adopted acts (and maybe by virtue thereof), the principal strategic trends of development are only in the process of formation[17].

      Changes in the law of the Russian Federation have resulted in destruction of the integrity of Russian law, in deviation from the provisions of a closed[18] all-sufficient nature of the Roman-German (socialist) legal system of the USSR and formation in Russia of a certain legal system which currently cannot be attributed by a number of characteristic features to any of the known contemporary law families. Probably, the most appropriate name for the given legal system would be the system of a mixed western type. The specifics of the Russian legal system does not mean that the system concerned is unique, similar legal systems are typical of many European countries which have underwent the influence of the USA in the post-war period, Asian countries, and many other third world countries permanent clients of the International Monetary Fund.

      However, despite the above changes the principal sources of the Russian substantive and procedural law, with due regard for their contents, have remained true to the traditions of the Roman-German law family. Good or bad, but due to that the system of civil law and civil jurisdiction has retained a certain degree of conservatism, without going to the extremities of the Israeli legal system in the outburst of reforms[19], and here an unquestionable merit of the Russian specialists in the sphere of civil law and civil process cannot be but noted.

      Reforming of law has resulted in Russia in one of the most material contradictions of our times, i.e. the provision Article 46 of the Constitution of RF guaranteeing everyone a judicial protection of his rights and freedoms. The contradiction is that despite the guarantee specified in the constitution, a policy to create a rule-of-law state officially proclaimed in Article 1 of the Constitution of RF, the problems of availability and effectiveness of justice engendered by a lot of other factors do not allow the people to exercise their right provided by the Constitution of RF.

      The current Russian mechanisms of protection of the rights and lawful interests of numerous groups of persons are not sufficiently efficient, they do not create the conditions for easier access to justice.

      Thus, the report On the activities in 1998 of O. Mironov, the Human Rights Commissioner in the Russian Federation[20] contains the following information. As a result of the financial crisis in Russia in1998 the rights of over 70 million people have been infringed. Numerous complaints of individuals about the obstacles they face in courts when filing the claims against commercial banks seeking return of their deposits and in the course of consideration of the same are still being received by the Commissioner. Only in the courts of Moscow there are tens of thousands of the statements of claim seeking return of bank deposits. In the Zamoskvoretsky municipal court of Moscow there are several thousands statements of claim, but only one judge entertains them once a week. Violation of the time limits for consideration of the actions in courts actually transforms into mass violation of the citizens rights. These facts served as a basis for the address of the Human Rights Commissioner to V.M. Lebedev, the Chairman of the Supreme Court of RF concerning restoration of the constitutional rights of the citizens to judicial protection.

      The circumstance that the procedural mechanisms used in Russia today to protect numerous groups of persons are absolutely unfit for this purpose essentially decreases the level of effectiveness and accessability of justice. Subject to the rules of the Russian procedural law the protection of several persons in one and the same proceedings is possible by virtue of Article 35 of the Code of Civil Procedure of RSFSR allowing participation of several claimants and respondents in the same case. As is known, despite the fact that the claim, by virtue of the above Article, can be filed by several claimants or against several respondents, every claimant or respondent should act independently with respect to the other party. Those participating in a joinder can assign one of them to handle the case.

      The institute of joinder in the Code of Civil Procedureof RSFSR does not stipulate any possibilities to protect a numerous group of persons. Besides, in view of the fact that every claimant should act independently with regard to the other party, the institute of joinder is not effective in respect to a wide circle of persons, when the number of those participating in a joinder may reach hundreds or thousands of people.

      The courts prefer to refrain from entertaining by way of a joinder the disputes pertaining to a possible violation of the rights of a numerous group of persons. Instead, they consider a certain number of actions pertaining to one and the same fact of violation individually. This is due to the fact that it is practically impossible to ensure participation of numerous co-claimants in the proceedings in a case.

      In consideration of the cases of violation of rights and lawful interests of numerous groups of persons the courts have to render separate judgements on practically one and the same case. At the same time, there is no guarantee that such judgements would be consistent. This also leads to certain compensation being awarded only to those investors which managed to forestall their fellow victims in filing the action with the court.

      As a result, it turns out that the court is unable to protect the rights of the investors remaining after rendering of one or several individual judgements in the case.

      One would like to think that in adopting individual federal laws stipulating the institute of claim in defense of an unspecified group of persons it was also planned that the claim concerned could ensure accessibility and effectiveness of justice[21].

      Nevertheless, the protection of interests of an unspecified group of persons today cannot be sufficiently efficient in view of its failure to recover losses or compensate for the harm to health of the above persons. Practically complete uselessness of the claim in defense of an unspecified group of persons as the means of private defense of individuals is somewhat smoothed over and partly justified by the nature of public effect of such claim. The claim to defend an unspecified group of persons is capable to cut short illegal activities of the respondent and to establish a court prejudice in the case of a numerous group of persons also called an unspecified group of persons.

      The existing techniques of defense of an unspecified group of persons with the help of a prosecutor, public, and non-governmental organizations are very similar, in terms of efficiency of their use, to the claims in defense of an unspecified group of persons filed by claimants.

      If the possibilities for the prosecutor to participate in the civil proceedings are known and seem to be optimistic in connection with a real necessity for the prosecutor to be involved in the court hearing of cases of protection of an unspecified group of persons, the effectiveness of granting, in accordance with Russian law rules, the powers to file claims in defense of an unspecified group of persons to public authorities, such as the Ministry of Antimonopoly Policy, the Federal Commission of the Securities Market of Russia, etc., which in terms of their status are branch ministries, seems to be doubtful.

      The burden of duties vested in the officials of the above ministries does not make it possible to protect the rights and interests of citizens and business subjects to a full extent and on a proper level. Insufficient financing of these public authorities limits the staff of qualified employees, and this does not make it possible for these authorities to discharge effectively the function of defense of numerous groups of persons vested in these authorities by law.

      No less important is that the clerks of new ministries, in compliance with law, have possibilities to use their office authorities, unrestricted by law. It is practically impossible to compel them in court to observe the law rules, which, in its turn, harbors a serious danger of abuse of their office powers, which may also have fatal consequences for, first of all, the interests of a numerous group of persons whose rights have been infringed[22].

      Lately, in connection with origination of the institute of indirect (derivative) action in Russian law, new possibilities are being opened to use such action as a means of judicial protection of shareholders rights.

      The application sphere of the indirect (derivative) action is limited today to the securities market. This right protection mechanism is used infrequently. Possibly, this is due to the fact that a shareholder filing an indirect (derivative) action with the court receives no compensation of his losses from the respondents, except for compensation of legal expenses, provided he wins the case[23].

      The indirect (derivative) action is a fairly relative tool of protection of a wide circle of shareholders; besides, the possibilities of its use are significantly hampered by the absence of respective elaborate procedural rules in the Code of Civil Procedure of the RSFSR.

      Company law, like company relations in general, presupposes rather specific relations between the shareholders. The construction of a derivative action is, in essence, a small-scale political coup inside the joint-stock company, since in order to prove that a general director or the board of directors of a joint-stock company acted wrongfully, one needs forcible arguments. As a rule, the access to such proofs for minor shareholders whose rights are mostly violated by the companys governing bodies is hampered.

      As a result, judicial protection of such shareholders in terms of the indirect (derivative) action is fairly relative. Filing by the shareholder of an indirect (derivative) action against the executive body of the company may bring about for the shareholder concerned negative consequences, the least of which would be a claim seeking protection of honor and dignity filed by the executive body against the shareholder.

      Hence, the rate of effiacy of the existing mechanisms of protection of numerous groups of claimants in Russia is pretty low due to a number of factors opposing not only to implementation of the rules of the above institutes, but also to the very resort to these as a means of struggle for the right.

      One of the means of protection of the rights and lawful interests, primarily property rights of numerous groups of persons used in foreign civil proceedings is the institute of property class action. The institute concerned is traditionally viewed in the theory of the civil procedure as an option in searching a way out of the situation with protection of rights and lawful interests of numerous groups of persons.

      One cannot but agree with the opinion that the issue of class actions is a disputable one. The disputes follow this institute from the moment it came into existence in British equity courts.

      The attitude to the institute concerned in the civil procedural law science is non-ordinary, the opinions vary from ecstatic approval to complete aversion. The possibility to incorporate the mechanism of the property class action in the rules of civil procedural law of Russia has been investigated for the past five years of judicial reform and has both its advocates and implacable opponents[24].

      It should be noted that a similar ambigous attitude is exhibited toward class actions in the USA a country where this procedural mechanism is used most frequently and where the institute of a class action is called the Frankensteins monster[25].

      The US procedural law and theory single out the procedures of consideration of class actions as separate proceedings called special procedures.

      Actually, as I deem it, it would be more correct to consider the class action not as a mass violation of the principle of disposal, which is frequently mentioned by some of the Russian scholars, but rather as a bold attempt to comprehend the unbounded made first in the equity courts in England and then in the US courts, and, though it may appear strange, many such attempts were successful.

      Currently the property class actions are used in many other countries, and not only in the USA. These are a part of the civil procedural law rules of Canada, Australia, New Zealand, South Korea, Philippines.

      A class action is an application on behalf of a group of persons requesting to consider a dispute which has arisen on the basis of a general juridical fact or representing a request to restore an infringed right, change the status of certain legal entities or natural persons put forward in the interests of all group members adequately represented. The proceedings in the class action are a special type of proceedings under which several persons having similar claims unite in a group in order to file the claims concerned and secure their rights and lawful interests, or restore the infringed rights.

      In compliance with the principle of disposal everyone can use and exercise his right, an individual or other claimant is entitled to independently define the subject and cause of action, the amount of the claims in action and the time to bring the action. Nobody can be compelled by anyone whatsoever to perform these acts. A class action by a member of a numerous group of persons is brought by the member concerned in defense of the group; every person forming the group has a right of choice, also called a right of option. As a result, at the time set by court, all persons attributing themselves to the group are obliged to inform the court about their consent to join in the groups claims or about their refusal to participate in the proceedings in the case concerned. The refusal to participate in the proceedings in the class action does not deprive any of the group members of their right to bring an individual action in the matter concerned. Hence, any member decides for himself whether or not he should bring the action, make the respondent liable, what kind of action to bring, and when it would be better to do: together with the group or later, individually. The group member defines the subject of the action independently.

      On the whole, it would seem that class actions could become useful in our judicial system in ensuring the accessibility and efficacy of justice. The individuals having minimal claims in action in respect of the respondent who has violated their rights would practically never go to the court to defend their rights. In the event of the class action the defense of their rights could be exercised by the person who has assumed the obligation to perform the function of the group leader, and in this case a certain, though, of course, not a hundred percent, but a partial compensation of the claimants losses would be ensured.

      A class action should be advantageous for the State. It is capable of providing the State with efficient means of mass civil cases consideration and bringing to trial the persons guilty, first of all, of law violation.

      The same may be assumed with respect to judges: by assuming new authorities to entertain class actions they can consider a number of actions pertaining to the same violation of rights by one and the same respondent. It would seem that mass proceedings, which would enable the judges to reduce the time and paperwork, would quickly replace common proceedings as soon as the judges and parties involved become aware of the advantages of the new mechanism.

      But this is only at a first glance, because the reforms in the sphere of ensuring protection of the rights of numerous groups of persons go slowly. Several reasons of that can be assumed.

      The judicial system is too weak to master new procedural mechanisms. The judges are head over ears in work. The cases of class actions may be extremely important and involve large sums of damages; consequently, consideration of such cases would involve an increased responsibility. Finally, the judges may simply be not ready to consider such important cases because, for instance, they are afraid for their own lives, the safety of their children and close relatives. It is a common knowledge that few judges are duly protected , and access to common courts is practically free. Probably, that is why explosions can be periodically heard there.

      When the judges take class actions for consideration, they cannot be certain that consideration of a complex civil case will somehow positively affect their salary. In this connection a lawful question arises: what would be the motives for the judges to take up a more complicated work, the more so that the work concerned would be paid for as any routine work?

      When the judges understand that the cases they have to take for consideration are so great in number that it is impossible to consider them within the established time periods, even if they work round-the-clock, without days-off, one would hardly find the motive which would convince the judges of the necessity to take up a civil case of a numerous group of persons.

      On the assumption that a court of first instance renders a judgement in a class action case, and the judgement concerned goes to the court of cassation, the absence of mandatory rules for consideration of class actions corroborated by the authority of the Supreme Court of RF binding for all the courts of lower instances may play a practical joke on the parties to the case and reduce to zero all expenses of consideration of the case concerned by the first instance court.

      Dogmatism of civil procedure theory obstacles introduction of the class action institute. This dogmatism is sometimes unilateral. Some of the scholars are against introduction of the class action institute, pointing out that it will infringe the principle of disposal and that consideration of civil cases is not an obligation but a favor of the State to citizens. Others criticize the institute of a derivative action, suggesting instead of a class action a corporate action which, in the opinion of many advocates of such concept, is more in line with the Russian legislative requirements.

      Far from being trustworthy are the radical trends in our civil procedure science calling for an unlimited expansion of adversary fundamentals in the proceedings, saying that achievement of the principle of the parity of the parties to the proceedings is a Utopian goal, and the strive to achieve it is connected to a great extent, in their opinion, with our socialist past when parity was only proclaimed, but actually it was absent.

      In this connection I would like to quote Professor M. S. Shakaryan who noted that the Code of Civil Procedure of RSFSR was a model of its times. Can we give the same high estimate even to one federal act of the new times, except to the Constitution of RF and the Civil Code of RF? I do not think that anyone will take such a responsibility.

      In view of the above factors, civil procedure scholars, in their majority, are hardly susceptible to the acute problem of protection of the rights and lawful interests of numerous groups of persons.

      One cannot ignore an apparent lack of desire on the part of the executive authorities to strengthen the judicial authority. Historically, the judicial authority in Russia is in a weaker, if not in a subjunctive, position as compared to the executive authority. The main purpose of functioning of the judicial authority in a State of law and order is to ensure the principle of domination of law and protection of rights; if the judicial authority has at its disposal the mechanisms of mass pressure on the executive authorities, its decisions can influence the politics, which is hardly commensurable with the interests of any political elite. Besides, the public authorities, in light of the decisions which are a violation of Russian law, rules of the Russian Constitution, of the Civil Code of RF, have every chance of becoming a prime target in the class action proceedings.

      It is also necessary to note that possible is a strong resistance to introduction of a mass action proceedings on the part of the class of exporters comprising major businesses these are all possible natural and unnatural monopolists in Russia, having today a unique opportunity to infringe the individuals rights to an unlimited extent. In evaluation of such factor it should be kept in mind that it is possible to coordinate the efforts of this category of the class action institute opponents with the executive authorities, especially on a regional level.

      The heads of the subjects of the Russian Federation, who comprise certain persons who have privatized such a profitable Soviet economy branch as local self-government, as well as governing of the subjects of the Russian Federation, may also strongly oppose introduction of the class action institute. The category concerned unites violators of Russian law, especially of the Russian Constitution, which results in mass violations of the individuals rights and lawful interests.

      The possibility of resistance on the part of organized crime cannot be excluded, or simultaneous attempts to abuse the institute concerned in the event it is rooted in the civil procedure, which is also possible, though it may seem paradoxical at first glance. It is a common knowledge that ingenuity of organized crime is boundless. A class action may be used as a means of pressure on the competitors, a kind of civilized racket leading to bankruptcy of the debtors company, pressure on the governors or representatives of the public authorities. A negative aspect for organized crime, as regards the acceptance of the class action institute, may be dismissal of corrupted clerks or closure of companies yielding profit to organized crime.

      With due regard for the fact that the boundaries between all the above categories of potential opponents to introduction of the class action institute are currently fairly washed out, the above classification is more than tentative.

      If one would think over who could be the advocates of the class action institute introduction, one would find that these could be the following categories.

      First and foremost the advocates of the class action institute could be individuals, in particular their initiative groups.

      Thus, in Ekaterinburg a demonstrative example took place when tenants of several multi-apartment houses encountered a decision of the municipality to construct an underground garage on the territory of the yard on which the windows of the above houses gave. In order to keep the air clean and to preserve the childrens playground, people living in all three houses, though previously many of them were not even acquainted, united. They set up an initiative group and filed a suit having hired a representative with their collected money. The lawsuit, which went for some time, produced no expected results. Nevertheless, a suddenly revealed high level of organizations of the tenants of multi-apartment houses, who not only organized pickets against construction in their yard, but regularly arranged sport events, etc., in order to convince the common court that is impossible to construct underground garages on the territory of the yard, is amazing.

      This is a vivid example of unification of individuals facing infringement of their civil rights and lawful interests, which demonstrates and again confirms the prospects and obvious advantages of an organized struggle for rights and lawful interests as compared to an individual action.

      The next kind of persons interested in introduction of the class action institute may comprise potential representatives of numerous groups of persons whose rights and interests have been infringed: law firms, representatives of organized crime for reasons mentioned above.

      The above representatives of numerous groups of persons are highly interested in receipt of new income sources and promotion of their activities, which, finally, may stimulate their involvement in the class action proceedings.

      The category of persons interested in introduction of the civil procedure mechanism of class actions may also comprise certain authorized public bodies, including those having by virtue of the law special powers to protect the rights and lawful interests of numerous groups of persons. Mass civil cases with their direct involvement could drastically reduce the level of public importance of such organizations and simultaneously assign part of their functions to the members of numerous groups of persons.

      Summing up the issue of accessibility and effectiveness of justice in consideration of civil cases of numerous groups of individuals, I would like to note that the problem concerned is apparently one of the most integrated. It affects many spheres of the State activities and pertains to the Russian legal system.

      Russia underwent many judicial reforms and quite a few of these contained individual elements of those institutes which currently are introduced as new or foreign ones, but the main index of effectiveness and accessibility of justice nonetheless seems to be the availability of real opportunity for any citizen of the Russian Federation to resort to a court with a request to protect his right and lawful interest.

      With due regard for the fact that the rights are granted to all citizens of this country, ideal would be an equally efficient and available ensuring of judicial protection with respect to each citizen. The question how this should be attained is to be solved by the State.

      Approving the rule of the citizens duty, the State is entitled to request the discharge of such duty; accepting the rule of the citizens right to judicial protection, the State assumes the obligation to secure the citizens right and provide to him a possibility to consider his case in line with the Constitution of RF and the whole entirety of the principles of civil proceedings.

      In this connection, the problem of effectiveness and accessibility of justice in cases of numerous groups of persons awaits its resolution, it requires non-ordinary approaches, solutions, which could really reduce, even if not solve, the urgency of the problem concerned.

      But this is hardly within the capacity of any scholar, nor this problem can be solved by an initiative group.

      In order to solve the problem of ensuring the effectiveness and accessibility of justice in cases of numerous groups of persons necessary is mutual understanding and close cooperation of all scholars specializing in proceedings, judges, practicing lawyers, representatives of executive authorities, and all those who would sincerely desire to assist the reform of the Russian State and law.



[1] Professor M.K. Treushnikov notes that there are1.5 times more civil cases initiated by the common courts in Russia than there used to be in the USSR, which is due to a tremendous rise of the number of conflicts in the Russian society. Previously in the USSR about 3 mln 300 thou. civil cases were considered every year as an average, and for the last three years the Russian courts receive 5 mln of such cases per year. See the interview with M.K. Treushnikov, GARANT database.
[2] M.K. Treushnikov, ditto.
[3] Professor V.V. Yarkov considers that the new Civil Code and the federal laws adopted in pursuance thereof have changed both the system and contents of private law, and the ideology of regulation in the sphere of civil relations. All this necessitated the development of not only the civil procedural law, but the system of civil jurisdiction as a whole. See V.V. Yarkov, Vliyanie reformy chastnogo prava na razvitie sitemy grazhdanskoi jurisdiktsii, Teoreticheskie i prikladnye problemy reformy grazhdanskoi jurisdiktsii (Influence of Private Law Reform on the Development of the System and Forms of Civil Law, Theoretical and Applied Problems of the Civil Jurisdiction Reform), Ekaterinburg, 1998, p.46.
[4] Professor M.I. Kleandrov notes that in Russia there exists an exceptionally variegated practice of assessment of the CVs of candidates for judges which are accessible for superficial and laymans checking by the court administrations and qualifying boards of judges. Special checking upon personal requests of the chairmen of the local courts and fairly superficially on the federal level is conducted by special services, though they do it as a favor and, most important, the results of such checking are not formally executed. Consequently, in the event of compromising materials, the court chairman must reject the candidate on vague grounds (currently at the stage preceding consideration of a particular candidate by a qualifying board of the judges), which is simply against law and fraught with the loss of authority of the court chairmen (and also gives reason to question their impartiality). Checking of physical and mental health is not conducted at all, nor there are any officially fixed requirements to the judges health. See Kleandrov, Nuzhen federalnyi zakon o proverke kandidatov v sudji (A Federal Law on Checking the Candidates for Judges is Needed) Rossijskaya yustitsiya (Russian Justice), No.11, 2000.
[5] Prof. Adrian Zuckerman, Assessments of Cost and Delay a Multi-National Perspective. Report on the World Congress of Civil Proceedings in Vienna, 1999.
[6] R.F. Kallistratova, I.A. Prikhodko, M.Sh. Patsatsiya, Sudoproizvodstvo v arbitrzhnykh sudakh i sudakh obshchej yurisdiktsii Rossijskoi Federatsii: dostizheniya, problemy, perspektivy (Judicature in Arbitration and Common Courts of the Russian Federation: Achievements, Problems, Prospects). in Systema grazhdanskoi yurisdiktsii v kanun XXI veka (The System of Civil Jurisdiction on the Eve of the XXI Century) Intercollege Collected Articles, Ekaterinburg, 2000, p.17.
[7] R.F. Kallistratova, I.A. Prikhodko, M.Sh. Patsatsiya, ditto.
[8] S.V.Bobotov, I.Yu. Zhigachev, Vvedenie v pravovuyu sistemu SShA (Intriduction into a Legal System of the USA), Moscow, 1997, p.188.
[9] Tim Taylor, Nigel Cooper, European Litigation Handbook, London, 1995, p.35.
[10] Prof. Adrian Zuckerman, ditto.
[11] R.F. Kallistratova, I.A. Prikhodko, M.Sh. Patsatsiya, ditto.
[12] Thus, I.V. Reshetnikova is of the opinion that Russia, having joined the market economy and redirected itself to capitalist relations in economy, inevitably joined the development tendencies typical of other capitalist countries. Such a trend is typical not only of the economy, but also of the legal sphere, judicial system included. See I.V. Reshetnikova, V.V. Yarkov, Grazhdanskoye pravo i grazhdanskij protsess v sovremennoy Rossii (Civil Law and Process in Contemporary Russia) Ekaterinburg-Moscow, 1999, p.45.
[13] For instance, the investment rating of the China Peoples Republic is many times higher than Russias ratings; however, the tendency of the development of the legal sphere in that country is obscure, the adherence to socialist law principles and original traditions is preserved, the regularity of the judicial system development does not work, either, the economy of the country grows rapidly. China possesses a sufficient production capacity allowing to produce goods for the whole world, western countries included. Despite the fact that in China the Basic Principles of Civil Law were adopted in 1987, this does not necessarily mean that actually there are court proceedings and judgements are rendered, and court practices come into existence. See Rene David, Camilla Geoffrey-Spinozi, Osnovnye Pravovye Sistemy Sovremennosti (Basic Legal Systems of Today), Moscow, 1998, p. 365.
[14] Yu.A. Tikhomirov, Obshchaya kontseptsiya razvitiya rossijskogo zakonodateltsva (General Concept of Russian Law Development), Russian Law Journal, No.1, 1999.
[15] One cannot but agree with Professor A.F. Cherdantsevs precise estimate of the juridical technique of legal implementation of general law family rules in precedents and statutes. He notes quite justly that the law rules in Anglo-Saxon legal systems are pretty detailed, casuistic in nature, because these are formulated as precedents in judging specific cases. However, the law rules in the statutes, like in the Roman-German systems, act as more general regulations, since it is assumed that they will be made more precise in the cases. See A. F. Chrdantsev, Teoriya gosudarstva i prava: uchebnik dlya vuzov (State and Law Theory: a textbook for law schools), Moscow, 1999, p.402.
[16] See S.K. Zagainova, Sudebnyi pretsedent: istoriko-pravovoi aspekt (Judicial Precedent: a Historic and Legal Aspect). An abstract of master of law thesis, Ekaterinburg, 1999, p.14.
[17] I.A. Isaev, Istoriya gosudarstva i prava Rossii (The History of State and Law of Russia), Moscow, 2000, p.754.
[18] S.S. Alexeev, Pravo: azbuka, teoriya, filosofiya, opyt komplexnogo issledovaniya (Law: the Alphabet, Theory, Philosophy, Experience of Comprehensive Analysis ), Moscow, 1999, p.207.
Professor S.S.Alexeev have quite rightly noted that the Roman-German law system is a logically completed, structurally closed normative system of written law, but para 4, Article 15 of the Russian Constitution defines that the generally accepted principles and rules of international law and international treaties of the Russian Federation are a part and parcel of its legal system. If an international treaty of the Russian Federation sets forth the rules other than those stipulated by law, the rules of the international treaty will be applicable. In accordance with para 1, Article 17 of the Constitution of RF the rights and freedoms of a man and a citizen are acknowledged and guaranteed in the Russian Federation in compliance with generally accepted principles and rules of international law. As regards legal implementation of law rules, it is not quite clear whether there exists a guarantee that the rules and principles of international law applicable on the territory of the Russian Federation and comprising a system of Russian law in compliance with the Constitution will be formulated in a form accepted in the Roman-German law family rather than, let us say, in compliance with the Anglo-Saxon law family doctrine.

[19] Prior to 1948 English precedents were mandatory on the territory of Israel. Currently the Israeli courts refer in their decisions to the American court practice by quoting the rulings of the Supreme Court of the USA and orienting themselves on the US court practice.. See Pravovye sistemy mira (Legal Systems of the World) edited by Professor A.Ya. Sukharev, Doctor of Law, Moscow, 2000, pp.212-218.
[20] Rossijskaya Gazeta (The Russian Gazette), 10.03.99, p.6
[21] The laws governing claims in defense of an unspecified group of persons comprise the Declaration of the Rights and Freedoms of a Man and a Citizen, the Constitution of RF, the Laws of RF On Sanitary and Epidemiological Wellbeing of the Population dated 19 April 1991, On Protection of the Environment dated 19 December 1991, On Protection of the Consumers Rights dated 5 December 1996, On Regional and Area Administration dated 5 March 1992 with subsequent amendments and addenda, Federal Laws of RF On Advertising dated 18 July 1995, On General Principles of Local Government Organization in the Russian Federation dated 28 August 1995, On Joint-Stock Companies dated 26 December 1995, On the Securities Market dated 22 April 1996, On Protection of the Rights and Lawful Interests of the Investors at the Securities Market, etc.
[22] Federal Law dated 22.04.96, No. 39-FZ On the Securities Market contains no directives concerning the duties of the FCS of Russia, in accordance with this Law the Commission has only functions and rights.
[23] V.V. Yarkov, ditto.
[24] In this respect demonstrative is the position of L.F. Lesnitskaya, the leading research fellow of the Institute of Law and Comparative Jurisprudence under the Government of RF in whose opinion the property class action violates the principle of disposal, interests of a number of persons, which, in absence of the boundary between joinder and class action and of fixed procedural time limits for hearing of the case of a numerous group of persons makes the use of such mechanism in the civil procedure law impossible.
[25] The class action was so named by Judge Loumbard in his opinion on the case of Eisen v. Carlize & Jacquelin, 391 F.2d555, 572 (2nd Cir.1968).


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